5.  The applicant was born in 1973 and is currently detained.
6.  On 30 March 2004 the Prague City Court (městský soud) found the applicant guilty of murder and unlawful possession of arms under Articles 219 §§ 1, 2 (h) and 185 § 1 of the Criminal Code, sentenced him to fourteen years' imprisonment and ordered his expulsion from the Czech Republic, in accordance with Article 57 of the Criminal Code. The court considered the applicant a fugitive and therefore decided in his absence. The applicant's interests were represented by defence counsel pursuant to Article 304 of the Code of Criminal Procedure.
7.  On 8 September 2004 the High Court (Vrchní soud), on an appeal by the applicant's defence counsel, upheld the judgment of the City Court. It pointed out that an appeal on points of law to the Supreme Court lay against its decision; the appeal on points of law had to be lodged within two months from the date of its notification through defence counsel.
8.  Pursuant to Article 306 § 1 of the Code of Criminal Procedure, the aforesaid decisions were notified only to the applicant's defence counsel.
9.  On 7 October 2004 the City Court ordered the applicant's arrest.
10.  The applicant received a copy of the Prague City Court's judgment on 19 April 2006.
11.  According to the applicant, on 27 April 2003 he came back from the Czech Republic, which he had been visiting as a tourist. Thereafter he lived at his registered place of residence and worked in Ukraine.
12.  On 28 January 2006 officers of the Kyiv City Department for Combating Organised Crime of the Ministry of the Interior (the Kyiv COC Department) arrested the applicant under the international arrest warrant issued by the Czech authorities. This fact was mentioned in a letter of 17 February 2006 from the Deputy Head of the Kyiv COC Department to the applicant's mother. According to the applicant, the officers asked him about his stay in the Czech Republic and informed him that he was wanted by the Czech law-enforcement authorities for murder. Later the same day he was taken to the Kyiv Holosyiyvskyy District Police Department.
13.  According to the Government, the police arrested the applicant for swearing in public and resisting the police.
14.  On 30 January 2006 the applicant was taken to the Kyiv Holosyiyvskyy District Court (the District Court), which considered materials submitted by the Kyiv Holosyiyvskyy District Police Department and found the applicant guilty of swearing in public and resisting the police and sentenced him to five days' administrative detention. The applicant's detention took effect from 1 p.m. on 28 January 2006.
15.  According to the Government it was on 30 January 2006 that the National Central Bureau of Interpol in Ukraine informed the Kyiv COC Department that the applicant's name appeared in the database of international arrest warrants.
16.  On 3 February 2006 the applicant was taken to the Kyiv COC Department.
17.  The same day the National Central Bureau of Interpol in Ukraine sent a copy of the applicant's arrest warrant to the Kyiv COC Department. The same day the applicant was arrested as a criminal suspect under the Code of Criminal Procedure (Article 106).
18.  On 7 February 2006 the applicant was taken to the District Court, which decided to detain him for forty days under Articles 12 and 16 of the 1957 Convention on Extradition, on the basis of the arrest warrant issued by the Prague City Court on 30 March 2004. The decision mentioned that the applicant was a Ukrainian national and that he had been arrested on 3 February 2006 at 7.30 p.m.
19.  On 13 March 2006 the Kyiv COC Department requested the District Court to extend the applicant's detention on the basis of the request of the Ministry of Justice of the Czech Republic to the Ministry of Justice of Ukraine concerning the transfer of the criminal case against the applicant under the European Convention on the Transfer of Proceedings in Criminal Matters.
20.  On 14 March 2006 the District Court extended the applicant's detention for thirty days under Articles 32 and 33 of the European Convention on the International Validity of Criminal Judgments and Article 165-2 of the Code of Criminal Procedure.
21.  The applicant was not present in court and received a copy of this decision only ten days later.
22.  On 20 March 2006 the Kyiv City Court of Appeal (the Court of Appeal) upheld the decision of 14 March 2006.
23.  On 11 March 2006 the Ministry of Justice of Ukraine received the materials in the criminal case file against the applicant from its Czech counterpart and transferred them to the Supreme Court of Ukraine for examination.
24.  By a letter of 7 April 2006, the Supreme Court of Ukraine referred the case file materials to the Court of Appeal to bring the judgment of the Czech courts into compliance with Ukrainian law under the Convention on the Transfer of Sentenced Persons. The Court of Appeal scheduled the case for a hearing on 27 April 2006.
25.  According to the Government, on 14 April 2006 the District Court extended the applicant's detention until the decision on recognition and enforcement of the judgment of the Prague City Court of 30 March 2004 was given. According to the applicant, he had not been aware of this decision and learned about it only from the Government's observations.
26.  On 26 April 2006 the applicant's lawyer submitted a request to the Court of Appeal, stating that several different international treaties on cooperation in criminal matters had been applied in the applicant's case, which meant that the competent authorities of the Czech Republic and Ukraine had not decided what treaty was to serve as the basis for enforcement of the judgment against the applicant. Therefore, in the lawyer's opinion, the European Convention on the International Validity of Criminal Judgments was an appropriate legal basis in the applicant's case and the judgment of the Czech court could not be enforced owing to the fact that the applicant had been tried and sentenced in absentia and Ukraine had made a reservation to the said treaty, refusing to enforce judgments rendered in absentia. The lawyer requested postponement of the hearing scheduled on 27 April 2006, to request the Czech authorities to provide additional documents, to give him and the applicant the opportunity to study the case file, and to release the applicant.
27.  On 15 May 2006 the lawyer submitted another request to the Court of Appeal, repeating his arguments about the principle of refusing to enforce judgments rendered in absentia, as expressed by Ukraine in the law on ratification of the European Convention on the Transfer of Proceedings in Criminal Matters. He further submitted that other European treaties in criminal matters could not apply either. He noted in particular that Article 3 of the Convention on the Transfer of Sentenced Persons required the consent of the sentenced person for his transfer and that the applicant did not give such consent. He requested, therefore, that the Czech authorities' request for their judgment to be brought into compliance with Ukrainian law be refused.
28.  On 24 May 2006 the applicant's lawyer made further written submissions to the Court of Appeal. He reiterated that the applicant had been absent for the whole of the criminal proceedings against him in the Czech Republic. He repeated the arguments in his requests of 26 April and 24 May 2006. In addition he noted that although the Additional Protocol to the Convention on the Transfer of Sentenced Persons foresaw a possibility of transferring the sentenced person without his consent, it applied only to persons who had fled from justice to their home country after the trial, and could not apply to persons tried in absentia. He also noted that the instructions of the Supreme Court in its letter of 7 April 2006 could not be binding on the Court of Appeal, as the above letter was not a procedural document. The lawyer requested that the Court of Appeal reject the request of the Czech authorities and release the applicant.
29.  On 16 June 2006 the Court of Appeal examined the case and decided to recognise the judgment of the Prague City Court of 30 March 2004 as being in compliance with Ukrainian legislation. In its decision the court noted that the applicant, a citizen of Ukraine, could not be extradited to the Czech Republic. Given that the applicant had been sentenced in the Czech Republic and the judgment and case file materials had been transferred to Ukraine in order to recognise the judgment and to convert the sentence, the court considered that it was actually a de facto and de jure transfer of the applicant as a sentenced person for serving his sentence in Ukraine. The court considered that such solution was based on paragraph 1 of Article 2 of the Additional Protocol to the Convention on the Transfer of Sentenced Persons and that paragraph 2 of the same Article confirmed the lawfulness of the applicant's detention in Ukraine.
30.  As to the applicant's argument that Ukraine undertook not to enforce judgments rendered in absentia, the court noted that the Czech Republic was not a party to the European Convention on the International Validity of Criminal Judgments to which Ukraine made such reservation. Furthermore, the court considered that the term “in absentia” should be interpreted in the light of the reasons for absence of the person concerned from the court proceedings. The court observed that there could be plausible reasons for the absence of the accused and considered that the legislature had had such situations in mind when it made the reservation in the law on ratification of the European Convention on the International Validity of Criminal Judgments. On the other hand, if the accused knowingly absconded, such a person could be sentenced in absentia. The court noted that it could not question what had been established by the Prague City Court, which had stated in its decision that the applicant had absconded and had therefore been sentenced in absentia. The court continued as follows:
“The conviction in absentia of [Mr] Garkavyy O. L. on the territory of the Czech Republic, by analogy, fully corresponds to the provisions of the second paragraph of Article 262 of the C[ode of] C[riminal] P[rocedure] of Ukraine concerning the possibility and lawfulness of examination of a judicial case in the absence of the defendant, in particular when he is outside the territory of Ukraine and avoids appearing before the court.”
31.  The court further noted that the fact that the Ministry of Justice of Ukraine had accepted the request of their Czech counterpart demonstrated the readiness of the Ukrainian State to comply with the judgment despite the fact that it had been rendered in absentia.
The court noted as follows:
“Erroneous reference by the Ministry of Justice of the Czech Republic and the Ministry of Justice of Ukraine, in their cover letters, to the sending of the judgment to bring it into compliance with the Ukrainian legislation in force under the European Convention on the Transfer of Proceedings in Criminal Matters does not deprive the court of the right to apply the Convention on the Transfer of Sentenced Persons, on which the defendant's representative insisted. On the contrary, the Kyiv City Court of Appeal is obliged to examine this judicial case under the rules of the latter Convention, as correctly indicated in the cover letter of the Supreme Court, because only such a procedure of judicial examination corresponds to the spirit of this Convention as well as that of the Constitution of Ukraine and the current criminal and criminal procedure legislation of Ukraine.
This means that application of the European Convention on the Transfer of Sentenced Persons in the examination of the present judicial case is the only correct and lawful action.”
32.  The court concluded that there were no procedural or other legal obstacles to recognising the judgment of the Prague City Court in compliance with Ukrainian legislation, and converted the sentence under the Criminal Code of Ukraine. The court left the sentence of the Prague City Court unchanged.
33.  On 14 July 2006 the applicant's lawyer appealed against this decision to the Supreme Court. In his appeal he complained that Ukrainian legislation and European treaties on criminal matters had been applied incorrectly. The applicant's lawyer noted that despite the fact that the European Convention on the International Validity of Criminal Judgments could not apply between Ukraine and the Czech Republic, the law on ratification of this treaty was in force and had to be used in any case. He noted that the applicant's trial had been conducted in his absence and that there was nothing to indicate that the Czech authorities had tried to inform the applicant about the trial or to use the Convention on Mutual Assistance in Criminal Matters to involve him in the proceedings. He further noted that neither international treaties nor Ukrainian law rendered the application of provisions about judgments rendered in absentia dependent on reasons for absence before the courts and that the Court of Appeal had adopted its own interpretation of the term “in absentia”, in contravention of the law. He also criticised the analogy used by the court in comparing the trial in absentia in the Czech Republic with the provisions of the Code of Criminal Procedure of Ukraine. He further noted that the Convention on the Transfer of Sentenced Persons and the Additional Protocol thereto were inapplicable in the applicant's case, because the judgment against him had been rendered in absentia and the Ministry of Justice of the Czech Republic had not made a request for the applicant to be transferred as a sentenced person. He noted that the Czech Republic and Ukraine had agreed on the application of the European Convention on the Transfer of Proceedings in Criminal Matters, and the Court of Appeal had merely to decide on the agreement between the Ministry of Justice of Ukraine and the Ministry of Justice of the Czech Republic by declaring their reference to the European Convention on the Transfer of Proceedings in Criminal Matters erroneous. Furthermore, Article 22 of the Convention on the Transfer of Sentenced Persons clearly stipulated that it was for the central authorities to decide under what treaty on international legal assistance their requests should be treated. He further noted that the court had not verified that the judgment of the Czech court was final and enforceable. He requested the Supreme Court to quash the decision of the Court of Appeal and to reject the request of the Czech authorities concerning the applicant.
34.  On 12 December 2006 the Supreme Court upheld the decision of the Court of Appeal. It noted, in particular, that the judgment of the Czech Court was final, that the applicant could not be extradited and that application of the Convention on the Transfer of Sentenced Persons in the applicant's case was reasonable. In addition, it noted that the Court of Appeal had correctly interpreted the issue of the applicant's trial in absentia with reference to Article 262 of the Code of Criminal Procedure.